2019 (2) TMI 1093

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....er 87. During the year 2005-2006 and 2006-2007 M/s DASL received duty paid components from M/s GMIL. They took credit on the duty paid on these goods and after carrying out further assembly the units were returned to M/s GMIL on payment of appropriate duty. W.e.f. 14.01.2007 the appellant started doing job work for M/s GMIL in terms of Rule 4(5)(a) of Cenvat Credit Rules 2004. The appellant also raised supplementary invoices No. 293 dated 01.02.2008, 294 dated 29.02.2008 and 295 dated 31.03.2008 and debited an amount of Rs. 2,82,76,996/-. M/s GMIL took cenvat credit of this amount. It was noticed from para 3 of the appeal memorandum suggests that the said three invoices for job work labour charges and not the excise invoices issued in terms....

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....DASL should be treated as a deposit under Section 11D(5) of the Central Excise Act as it was not in discharge of any duty liability. Penalty were also sought to be imposed on the appellant. The said notice was dropped by the Commissioner. Revenue is in appeal against the said order on the ground that while dropping the proceedings initiated vide the SCN against these two appellants, Commissioner has failed to give any finding regarding the activity of the appellant being manufacture. It has been argued that unless the Commissioner holds the activity undertaken by the appellant to be manufacture, no duty could have been paid on the goods vide supplementary invoices. The points for determination appearing in appeal memorandum are as follows: ....

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....ubmissions. We find that the grounds of appeal are essentially on the issue that the Commissioner has failed to examine if the process undertaken by M/s DASL and to ascertain if such processes amount to manufacture. Ld. Counsel for the Respondent has argued that in respect of identical processes during prior period the Respondent, namely M/s DASL was discharging central excise duty on the same activity. Ld. Counsel has also argued that the respondent, namely M/s DASL was availing benefit of Notification 214/86-CE during the impugned period also. He argued that this is sufficient evidence to hold that the activity carried out by the appellant during the impugned period was activity of manufacture and consequently, the duty was required to be....

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....are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of duty." It is seen that the Commissioner has examined the facts and circumstances resultant in duty payment in the instant case in para 13.2.2, wherein h....